Cardinal v. Metrish - Amicus (Invitation)

No. 09-109

In the Supreme Court of the United States

GERALD WILLIAM CARDINAL, PETITIONER

v.

LINDA METRISH, WARDEN

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

ELENA KAGAN
Solicitor General
Counsel of Record
THOMAS E. PEREZ
Assistant Attorney General
NEAL KUMAR KATYAL
Deputy Solicitor General
SAMUEL R. BAGENSTOS
Deputy Assistant Attorney
General
SARAH E. HARRINGTON
Assistant to the Solicitor
General
JESSICA DUNSAY SILVER
ANGELA M. MILLER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

QUESTION PRESENTED

Whether an individual may sue a State or a state official in her official capacity for damages for violations of the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. 2000cc et seq.

In the Supreme Court of the United States

No. 09-109

GERALD WILLIAM CARDINAL, PETITIONER

v.

LINDA METRISH, WARDEN

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to this Court's invitation to the Solicitor General to express the views of the United States. In the view of the United States, the petition for a writ of certiorari should be granted.

STATEMENT

1. Congress enacted the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. 2000cc et seq., to provide statutory protection against religious discrimination, unequal treatment of religions in the provision of accommodations, and unjus tified infringement of the free exercise of religion. The statute applies to two specific contexts, land use regula tion and institutionalization. The provision at issue in this case is Section 3 of RLUIPA, 42 U.S.C. 2000cc-1, which provides that "[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution," unless the bur den "is in furtherance of a compelling governmental in terest," and "is the least restrictive means" of furthering that interest. 42 U.S.C. 2000cc-1(a)(1) and (2). Con gress defined the statutory term "religious exercise" as "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. 2000cc-5(7)(A). And Congress defined "government" as "a State, county, municipality, or other governmental entity created under the authority of a State"; "any branch, department, agency, instrumentality, or official of [such] an entity"; and "any other person acting under color of State law." 42 U.S.C. 2000cc-5(4)(A).

Before enacting RLUIPA, Congress held nine hear ings over three years, gathering substantial evidence that, in the absence of federal legislation, persons insti tutionalized in state mental hospitals, nursing homes, group homes, prisons, and detention facilities had faced substantial, unwarranted, and discriminatory burdens on their religious exercise. See, e.g., H.R. Rep. No. 219, 106th Cong., 1st Sess. 5, 9 (1999) (House Report); Joint Statement of Senator Hatch and Senator Kennedy on the Religious Land Use and Institutionalized Persons Act of 2000, 146 Cong. Rec. 16,698-16,699 (2000). Such "frivolous or arbitrary barriers" to religious exercise, Cutter v. Wilkinson, 544 U.S. 709, 716 (2005) (citation and internal quotation marks omitted), affected persons confined to correctional facilities in particular. See House Report 9-10; 146 Cong. Rec. at 16,701. Congress heard testimony about sectarian discrimination in the accommodations afforded to prisoners, see Protecting Religious Freedom After Boerne v. Flores: Hearing Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 105th Cong., 2d Sess. Pt. 3, at 41 (1998) (statement of Isaac Jaroslawicz), as well as instances of prison officials' interfering with religious rituals without apparent justification, 146 Cong. Rec. at 16,699, 16,701.

Based on the evidence it collected, Congress con cluded that prison inmates faced "frivolous or arbitrary" rules that resulted from "indifference, ignorance, big otry, or lack of resources" and that had the effect of re stricting their religious exercise "in egregious and un necessary ways." 146 Cong. Rec. at 16,699. To prevent federal funds from contributing to such unreasoned or discriminatory burdens on the religious exercise of insti tutionalized persons, Congress invoked its Spending Clause authority, U.S. Const. Art. I, § 8, Cl. 18, to apply RLUIPA's statutory protections whenever a substantial burden on religious exercise "is imposed in a program or activity that receives Federal financial assistance." 42 U.S.C. 2000cc-1(b)(1).1 A covered "program or activ ity" includes "all of the operations of * * * a depart ment, agency, special purpose district, or other instru mentality of a State or of a local government." 42 U.S.C. 2000cc-5(6), 2000d-4a.

To ensure that persons entitled to RLUIPA's protec tion may vindicate their rights, Congress created a pri vate right of action, permitting any individual whose religious exercise has been substantially burdened in a manner prohibited by the statute to "assert a violation of this chapter as a claim or defense in a judicial pro ceeding" and to obtain "appropriate relief against a government." 42 U.S.C. 2000cc-2(a). In addition, the United States may seek injunctive or declaratory relief to enforce the statute. 42 U.S.C. 2000cc-2(f).

2. Petitioner was confined at the Hiawatha Correc tional Facility (Hiawatha) of the Michigan Department of Corrections, where he participated in the facility's kosher meals program. Pet. App. 1a-2a, 20a. After sev eral incidents of misconduct, petitioner was placed in temporary segregation. Because Hiawatha could not house inmates in temporary segregation for longer than eight hours, he was soon transferred to the Kinross Cor rectional Facility (Kinross). Id. at 2a. Kinross does not offer kosher meals and petitioner refused to eat the non-kosher meals provided. Ibid. Seventy-two hours elapsed before the staff at Kinross contacted its Health Services department about petitioner's situation; an other two days passed before the warden at Kinross was notified that petitioner was refusing to eat the non-ko sher meals; on the following day (petitioner's sixth at Kinross), petitioner was transferred to a third facility that both provides kosher meals and houses inmates in temporary segregation; and two more days elapsed be fore petitioner had access to a kosher meal at the new facility. Id. at 2a & n.1. Thus, petitioner was denied food that he could eat consistent with his religious be liefs for approximately 192 hours-a total of eight days. Ibid.

3. Petitioner filed a pro se complaint against respon dent (the warden of Kinross) in her official capacity for violations of RLUIPA, seeking equitable relief and dam ages under the statute. Pet. App. 2a, 20a-21a.2 Adopt ing the magistrate judge's report and recommendation (see id. at 28a-33a), the district court granted the respon dent's motion for summary judgment. Id. at 3a, 19a-27a. The court acknowledged that the plain language of RLUIPA creates a cause of action against the State, and that the State waived its Eleventh Amendment immu nity to suit for some form of relief by accepting federal funds. Id. at 23a. But the court held that RLUIPA's authorization of "appropriate relief" was not sufficiently clear to put States on notice that the acceptance of fed eral funds would subject them to money damages. Id. at 23a-25a.3

4. The court of appeals affirmed. Pet. App. 1a-15a. Addressing petitioner's claim for money damages under RLUIPA, the court considered whether such damages are encompassed in the "appropriate relief" authorized by 42 U.S.C. 2000cc-2(a), Pet. App. 6a-12a, an issue over which the circuit courts were and are divided, id. at 6a- 7a. The court noted that the Eleventh Circuit had held that RLUIPA's authorization of "appropriate relief" against a government defendant authorizes private dam ages suits against States that accept federal funds, Smith v. Allen, 502 F.3d 1255, 1271 (2007), while the Fourth and Fifth Circuits had held the opposite, Madison v. Virginia, 474 F.3d 118, 122-123 (4th Cir. 2006); Sossamon v. Lone Star State of Tex., 560 F.3d 316, 329-331 (5th Cir. 2009), petition for cert. pending, No. 08-1438 (filed May 8, 2009). Pet. App. 7a-10a. The court agreed with the Fourth and Fifth Circuits, holding that "RLUIPA does not contain a clear indication that Congress unambiguously conditioned receipt of federal prison funds on a State's consent to suit for monetary damages." Id. at 11a. Thus, the court concluded that "the Eleventh Amendment bars [petitioner's] claim for monetary relief under RLUIPA." Id. at 11a-12a.4

5. On November 2, 2009, this Court invited the So licitor General to file a brief expressing the views of the United States on whether the Court should grant the petition for a writ of certiorari in this case and another case (Sossamon v. Texas, No. 08-1438 (filed May 18, 2009)). Sossamon presents the same question that peti tioner raises in this case, as well as an additional ques tion not presented here.5

DISCUSSION

The court of appeals in this case erred in concluding that the Eleventh Amendment bars private parties from recovering monetary damages in suits seeking to en force RLUIPA's institutionalized persons provisions. The courts of appeals are divided over the proper reso lution of the question presented in this case, and there is no indication that the split in authority will resolve itself. On the contrary, because the division rests pri marily on differing interpretations of this Court's prece dents, it is necessary and appropriate for this Court to step in. This Court should grant the petition for a writ of certiorari to resolve the division among the courts of appeals and to correct the reasoning of the court of ap peals in this case and in four other circuits.

A. The Court Of Appeals Incorrectly Concluded That A State That Accepts Federal Funds Does Not Waive Its Eleventh Amendment Immunity To Suits For Money Damages Under RLUIPA

This Court has made clear that Congress, in the ex ercise of its power under the Spending Clause, may con dition the receipt of federal funds on a State's waiver of Eleventh Amendment immunity to suit-including suits seeking money damages. See College Sav. Bank v. Florida Prepaid Postsec. Educ. Expense Bd., 527 U.S. 666, 686-687 (1999); Lane v. Pena, 518 U.S. 187, 198-200 (1996). When Congress intends to attach such a condi tion to the receipt of federal funds, it must do so clearly and unambiguously. See, e.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247 (1985) (Atascadero); South Dakota v. Dole, 483 U.S. 203, 207 (1987). Congress has done exactly that in two separate statutory provisions, thereby putting States on notice that, if they accept fed eral funds for their correctional systems, they will be subject to private suits in federal court to enforce RLUIPA's protection of inmates' religious liberties, in cluding suits for money damages. By accepting such funds, a State knowingly waives its Eleventh Amend ment immunity to RLUIPA claims brought by state in mates.

1. In 42 U.S.C. 2000d-7, Congress clearly conditioned a State's receipt of federal funds on its waiver of Eleventh Amendment immunity to damages suits to enforce various federal statutes, including RLUIPA

The court of appeals held (Pet. App. 6a) that Con gress's authorization in RLUIPA of private suits seek ing "appropriate relief" against States that accept fed eral funds is sufficient to put States on notice that, by accepting such funds, they consent to private suits in federal court seeking injunctive relief. The court also held (id. at 6a-12a), however, that RLUIPA's authoriza tion of appropriate relief is insufficiently clear to effect a waiver of immunity to damages claims under RLUIPA. But the court did not need to reach that question be cause Congress explicitly conditioned the receipt of fed eral funds on a State's waiver of its Eleventh Amend ment immunity to suits seeking both types of relief when Congress enacted a statutory provision titled "Civil rights remedies equalization" in 1986. Rehabilitation Act Amendments of 1986, Pub. L. No. 99-506, § 1003, 100 Stat. 1845 (42 U.S.C. 2000d-7).6 That provision provides in pertinent part:

A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973 [29 U.S.C. 794], title IX of the Education Amendments of 1972 [20 U.S.C. 1681 et seq.], the Age Discrimination Act of 1975 [42 U.S.C. 6101 et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.

42 U.S.C. 2000d-7(a)(1) (brackets in original) (emphasis added). Section 2000d-7(a)(2) further specifies that a plaintiff may recover "remedies both at law and in eq uity" against a State for a suit brought under Section 2000d-7(a)(1).

Section 2000d-7 was enacted in response to this Court's decision in Atascadero, 473 U.S. at 246, which held that Congress had not used sufficiently clear statu tory language in Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794 (Section 504), to condition the re ceipt of federal financial assistance on a State's waiver of its Eleventh Amendment immunity to claims brought under that section. The Court reaffirmed in Atascadero that "mere receipt of federal funds" by a State is insuffi cient to constitute a waiver of immunity, while confirm ing that, if a statute "manifest[s] a clear intent to condi tion participation in the programs funded under the Act on a State's consent to waive its constitutional immu nity," the acceptance of funds constitutes a waiver. 473 U.S. at 246-247; College Sav. Bank, 527 U.S. at 686.

Section 2000d-7 provides the unequivocal notice de manded by this Court's precedents to "enable the States to exercise their choice [to accept federal funds] know ingly, cognizant of the consequences of their participa tion" in a federal spending program. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981) (Pennhurst). Section 2000d-7 makes clear that a State or state agency that accepts federal funds will be subject to private suits (including suits for money damages) in federal court to enforce "any * * * Federal statute prohibiting discrimination by recipients of Federal fi nancial assistance." 42 U.S.C. 2000d-7(a)(1). See Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 78 (1992) (Scalia, J., concurring) (explaining that Section 2000d-7 "must be read * * * as an implicit acknowl edgment that damages are available" in suits against States). RLUIPA is such a statute.

Although the court of appeals did not consider the applicability of Section 2000d-7 to this case, some courts of appeals have held (and respondent argues, Resp. Br. at 6-8, in Sossamon v. Texas, supra (No. 08-1438)) that Section 2000d-7's catch-all provision does not waive im munity from a suit like petitioner's because the relevant statutory protection in RLUIPA does not use the word "discrimination." Madison v. Virginia, 474 F.3d 118, 132-133 (4th Cir. 2000); Van Wyhe v. Reisch, 581 F.3d 639, 654-655 (8th Cir. 2009), petition for cert. pending, No. 09-821 (filed Jan. 8, 2010). But that argument inap propriately narrows the meaning of the word "discrimi nation" as used in Section 2000d-7. This Court has al ready held that the word "'[d]iscrimination' is a term that covers a wide range of intentional unequal treat ment," and that, "by using such a broad term, Congress g[i]ve[s] the statute a broad reach." Jackson v. Bir mingham Bd. of Educ., 544 U.S. 167, 175 (2005). So too in Section 2000d-7: when Congress clearly conditioned federal funds on a State's waiver of Eleventh Amend ment immunity to claims under "any" federal statute "prohibiting discrimination by recipients of Federal fi nancial assistance," 42 U.S.C. 2000d-7(a), it thereby in cluded statutes prohibiting a broad range of discrimina tory conduct.

That broad range of conduct may include a failure to make reasonable accommodations as prescribed by law. Section 504 of the Rehabilitation Act-the very statute at issue in Atascadero and listed first in Section 2000d-7-demonstrates how a prohibition on "discrimi nation" may include an affirmative accommodation re quirement such as that in RLUIPA. For decades, regu lations have interpreted Section 504's ban on disability- based discrimination to require that covered entities make "reasonable accommodation[s]" for qualified per sons with disabilities. See, e.g., 28 C.F.R. 41.53.7 And Section 504's affirmative accom-modation obligation is similar to requirements in other statutes, such as Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. In Title VII, Congress explicitly stated that its pro hibition of discrimination on the basis of religion in cludes a requirement that employers provide reasonable religious accommodations to employees' religious obser vance and practice. See 42 U.S.C. 2000e-2(a), 2000e(j). Similarly, Congress's reference in Section 2000d-7 to statutes prohibiting "discrimination" should be under stood to include RLUIPA's requirement of such accom modations in the prison setting.

Indeed, the potential linkage between a failure to make a reasonable religious accommodation and a prototypical act of animus-based discrimination is evi dent in the complaint petitioner filed in this case. See Pl.'s Amended Compl., 2:06-cv-232 Docket entry No. 20 para. 20 (W.D. Mich. Feb. 8, 2007) (Amended Complaint) (alleging that prison staff laughed at petitioner and asked, "How does it feel Kosher boy?" in response to his requests for any bit of food he could eat).8 That linkage confirms that RLUIPA "follows in the footsteps of a long-standing tradition of federal legislation that seeks to eradicate discrimination and is 'designed to guard against unfair bias and infringement on fundamental freedoms.'" Charles v. Verhagen, 348 F.3d 601, 607 (7th Cir. 2003) (quoting Mayweather v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002), cert. denied, 540 U.S. 815 (2003)); see Saints Constantine & Helen Greek Ortho dox Church, Inc. v. City of New Berlin, 396 F.3d 895, 900 (7th Cir. 2005) (Posner, J.).

Because RLUIPA is a "[f]ederal statute prohibiting discrimination by recipients of Federal financial assis tance," the State of Michigan was put on notice by the plain language of Section 2000d-7 that its acceptance of federal funds for its correctional system would consti tute a waiver of its Eleventh Amendment immunity to RLUIPA claims, including claims for money damages. That is a sufficient basis on which to sustain petitioner's RLUIPA claim against respondent, and the court of ap peals erred in affirming the dismissal of that claim with out regard to Section 2000d-7.

2. In the text of RLUIPA itself, Congress also clearly conditioned the receipt of federal funds on a State's waiver of its immunity to private damages actions in federal court to enforce the statute

Independent of Section 2000d-7, Congress stated in RLUIPA itself that private individuals "may assert a violation" of RLUIPA "as a claim or defense in a judicial proceeding and obtain appropriate relief against a gov ernment," 42 U.S.C. 2000cc-2(a), including "a State," 42 U.S.C. 2000cc-5(4)(A)(i). The courts of appeals ap parently agree that this provision places a State on no tice that, when it accepts federal funds for its correc tional system, it waives its Eleventh Amendment immu nity to RLUIPA claims for declaratory and injunctive relief. Van Wyhe, 581 F.3d at 653-655; Nelson v. Miller, 570 F.3d 868, 884-885 (7th Cir. 2009); Sossamon, 560 F.3d at 331; Madison, 474 F.3d at 130-131; Benning v. Georgia, 391 F.3d 1299, 1305-1306 (11th Cir. 2004); Pet. App. 6a-12a. The courts of appeals disagree, however, about whether the authorization of "appropriate relief" is sufficient to put States on notice that they will be sub ject to suits for money damages.

This Court has frequently considered the scope of relief available to private individuals in suits brought to enforce civil rights laws enacted pursuant to the Spend ing Clause, specifically Title VI of the Civil Rights Act of 1964 (Title VI), 42 U.S.C. 2000d et seq., Title IX, and Section 504. Each of those statutes is enforceable by individuals through a private right of action, see Barnes v. Gorman, 536 U.S. 181, 185-186 (2002), but that right of action is implied, so nothing in the statutory text specifies what remedies are available. In lieu of that provision, this Court has held that those statutes permit individual litigants to seek "appropriate relief," and that "appropriate relief" includes compensatory money damages. See id. at 186-189; Franklin, 503 U.S. at 68-71.

Although determining the remedies available under RLUIPA involves interpreting the statutory phrase "appropriate relief" rather than specifying an aspect of an implied private right of action, the reasoning this Court employed in cases such as Barnes and Franklin dictates the same result. In Franklin, the Court con fronted the question whether money damages are avail able in private suits under Title IX. In answering that question affirmatively, the Court explained that, when a statute creates a legal right and permits an individual to sue for invasion of that right, the Court "presume[s] the availability of all appropriate remedies unless Con gress has expressly indicated otherwise." 503 U.S. at 66 (emphasis added); see id. at 68; Bell v. Hood, 327 U.S. 678, 684 (1946). Specifically rejecting the contention that remedies under Title IX should be limited to injunc tions and other equitable remedies, the Court further noted that "it is axiomatic that a court should determine the adequacy of a remedy in law before resorting to eq uitable relief." Franklin, 503 U.S. at 75-76.

Particularly relevant to the issue presented here, the Court in Franklin eschewed a rule "that the normal pre sumption in favor of all appropriate remedies should not apply" to statutes "enacted pursuant to Congress' Spending Clause power." 503 U.S. at 74. Instead, the Court held that the availability of money damages for intentional violations of Spending Clause legislation is presumed so long as Congress clearly alerts fund recipi ents about the substantive requirements of the statute. Id. at 74-75.

The Court reaffirmed that rule in Barnes, holding that compensatory damages are available for violations of Section 504, although punitive damages are not. The Court explained that Spending Clause legislation is "much in the nature of a contract: in return for federal funds, the [recipients] agree to comply with federally imposed conditions." Barnes, 536 U.S. at 186 (brackets in original) (quoting Pennhurst, 451 U.S. at 17). Al though not all contract rules apply to Spending Clause legislation, this Court explained that the contract "anal ogy applies * * * in determining the scope of damages remedies." Id. at 187. Thus, a remedy for a violation of Spending Clause legislation "is 'appropriate relief' only if the funding recipient is on notice that, by accepting federal funding, it exposes itself to liability of that na ture." Ibid. (quoting Franklin, 503 U.S. at 73) (internal citation omitted). That principle determined the appro priate scope of relief in a suit against a government en tity for violating a funding condition: the fund recipient "is generally on notice that it is subject not only to those remedies explicitly provided in the relevant legislation, but also to those remedies traditionally available in suits for breach of contract," including compensatory (but not punitive) money damages. Ibid.

If, instead of specifying that "appropriate relief" is available to private plaintiffs under RLUIPA, Congress had been altogether silent about the available scope of relief, this Court's holdings in Franklin and Barnes would fill the gap by specifying that compensatory dam ages are available. The result should be no different just because Congress in RLUIPA included an addi tional layer of clarity, specifically noting the availability of "appropriate relief." That is particularly true in light of Congress's adoption of the precise phrase this Court used in Franklin and Barnes to describe the scope of relief (including money damages) that is generally avail able in a private suit against a party for violating a con dition of federal funding.9

Respondent argues (Resp. Br. 11) that the rules ar ticulated in Franklin and Barnes do not apply to RLUIPA because neither case involved a defendant en titled to Eleventh Amendment immunity. But the re quirement that conditions attached to federal funds be unambiguously expressed does not vary according to the type of entity accepting the conditioned funds. That notice requirement, which formed the basis of the deci sions in Franklin and Barnes, applies regardless whether Congress offers financial assistance to States, to local governments, or to private entities. E.g., Gebser, 524 U.S. at 287 (noting necessity of "ensuring that 'the receiving entity of the federal funds [has] notice that it will be liable for a monetary award") (brackets in origi nal) (quoting Franklin, 503 U.S. at 74). If other entities have sufficient notice of the availability of money dam ages in suits to enforce funding conditions, so too do States. To be sure, States and state agencies receiving federal funds start out with Eleventh Amendment im munity-to suits for injunctive relief as well as dam ages-while other entities do not. But that difference relates only to the situation that would exist in the ab sence of any clear condition in a federal spending statute regarding private suits for money damages. The pros pect of Eleventh Amendment immunity in that circum stance does not make a State any less able than another party to understand that a federal spending statute in fact includes such a clear condition.

In holding that a different standard applies in suits against States than in suits against other parties, the courts of appeals have ventured outside the Spending Clause context and relied instead on this Court's cases involving the federal government's waiver of its own sovereign immunity. E.g., Pet. App. 10a-12a; Madison, 474 F.3d at 131-132; Van Wyhe, 581 F.3d at 653. In Lane v. Pena, supra, for example, the Court concluded that the holding in Franklin that the "implied private right of action under Title IX * * * supports a claim for monetary damages" does not apply to suits against the federal government. Instead, when a statute autho rizes suit against the federal government, "the available remedies are not those that are 'appropriate,' but only those for which sovereign immunity has been expressly waived." 518 U.S. at 196-197.

But the federal government's voluntary waiver of its sovereign immunity is not akin to a State's waiver of Eleventh Amendment immunity in exchange for clearly conditioned federal funds. In the former case, the enact ment of federal legislation itself constitutes the waiver, and the Court requires Congress to speak clearly in that legislation about both the Government's amenability to suit and the relief available in such a suit.10 But when Congress conditions the receipt of federal funds on a State's waiver of immunity, the waiver comes not from the terms of the legislation, but from the State's accep tance of funds with knowledge of the consequences. Here, a State has such knowledge because this Court has made clear that, when Congress attaches substan tive conditions to the receipt of federal funds and (ex plicitly or implicitly) authorizes private parties to sue for violation of those conditions, those parties may seek money damages. Thus, when a State accepts federal funds for its correctional system, it does so cognizant of the following consequences: that it must comply with the substantive requirements of RLUIPA; that state inmates may sue for breach of those requirements; and that, if such an inmate prevails on the merits, the State will be liable for compensatory damages (unless other wise prohibited, see pp. 21-22, infra).

B. The Courts Of Appeals Are Divided On The Question Presented

The Court should grant the petition for a writ of cer tiorari not only to correct the court of appeals' errone ous holding, but also to resolve the division of authority among the courts of appeals.

To date, five courts of appeals (including the court of appeals in this case) have issued published decisions holding that money damages are not available against States for violations of RLUIPA. One has held the op posite.

The first court of appeals to consider the question presented was the Fourth Circuit, which held in Madi son, 474 F.3d at 129-133, that RLUIPA's failure to ex plicitly authorize money damages precluded individuals from recovering such relief against States. The Fourth Circuit also held in Madison that Section 2000d-7 does not condition the receipt of federal funds on a State's waiver of immunity to a suit brought under RLUIPA because RLUIPA is not clearly a statute "prohibiting discrimination." Id. at 133.

Soon after Madison, the Eleventh Circuit reached the opposite conclusion, holding that RLUIPA's authori zation of "appropriate relief" is sufficient to authorize suits for monetary damages against States and state officials acting in their official capacities. Smith v. Allen, 502 F.3d 1255, 1271 (2007). The Eleventh Cir cuit's decision in Smith followed its previous decision in Benning v. Georgia, 391 F.3d 1299, 1305 (2004), which held that "Congress unambiguously required states to waive their sovereign immunity from suits" under Sec tion 3 of RLUIPA, but which did not address the types of relief available to private plaintiffs. Id. at 1306. Rely ing on this Court's decision in Franklin, 503 U.S. at 68- 69, the Eleventh Circuit in Smith explained that, when Congress does not specify what remedies are available, courts should presume the availability of all appropriate remedies. 502 F.3d at 1270-1271. Assuming that Con gress was aware of this Court's holding in Franklin and noting that Congress did nothing to limit the remedies set forth in 42 U.S.C. 2000cc(a), the court held that RLUIPA's reference to "all appropriate relief" encom passes money damages. Smith, 502 F.3d at 1270-1271.

Since the Eleventh Circuit's decision in Smith, four other courts of appeals have joined the Fourth Circuit in holding that money damages are not available to States in suits such as petitioner's. Sossamon, 560 F.3d at 330; Pet. App. 5a-12a; Nelson, 570 F.3d at 884; Van Wyhe, 581 F.3d at 653.11

The division in authority on the question presented is ripe for resolution by this Court. Contrary to respon dent's suggestion (Resp. Br. 9), there is little reason to expect that the Eleventh Circuit will "revisit" this ques tion "in light of subsequent case law" generated from other courts of appeals. When the Eleventh Circuit de cided Smith, it acknowledged the Fourth Circuit's con trary decision in Madison, see Smith, 502 F.3d at 1270. The Eleventh Circuit subsequently denied rehearing en banc in Smith, see 277 Fed. Appx. 979 (2008), and has continued to adhere to its position despite additional courts of appeals' agreeing with the Fourth Circuit in Madison. See, e.g., Hathcock v. Cohen, 287 Fed. Appx. 793, 798 n.6 (11th Cir. 2008).12 The conflicting courts of appeals' decisions are based on divergent interpreta tions of this Court's precedents, and only this Court's intervention will resolve the dispute.

C. This Case Presents An Appropriate Vehicle For Resolu tion Of The Question Presented

Contrary to respondent's contention (Resp. Br. 6-8), the instant case is an appropriate vehicle for this Court's resolution of the question presented. Respondent is correct that the Prison Litigation Reform Act of 1995 (PLRA), 42 U.S.C. 1997e(e), often poses an independent bar to recovery of money damages by state inmates un der RLUIPA because the PLRA prevents an inmate from recovering more than nominal damages for a men tal or emotional injury unless he can demonstrate a physical injury as well. 42 U.S.C. 1997e(e), 2000cc-2(e). But even assuming that imposing a substantial burden on an individual's religious exercise in violation of RLUIPA qualifies as a mental or emotional injury- which petitioner does not concede (see Pet. Reply Br. 6- 8)-petitioner here does allege a physical injury. Peti tioner alleges that he was deprived of food that he was able to eat for eight days, as a consequence of which he lost 15 pounds, and suffered "bad abdominal pain," "diz ziness," "headaches," and uncontrollable trembling of his legs. Amended Complaint paras. 30-32. Thus, this case is a more suitable vehicle for resolution of the ques tion presented than most cases in which the issue will arise. See Mitchell v. Horn, 318 F.3d 523, 534 (3d Cir. 2003); Pratt v. Corrections Corp. of Am., 124 Fed. Appx. 465, 467 (8th Cir. 2005).

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

ELENA KAGAN
Solicitor General
THOMAS E. PEREZ
Assistant Attorney General
NEAL KUMAR KATYAL
Deputy Solicitor General
SAMUEL R. BAGENSTOS
Deputy Assistant Attorney
General
SARAH E. HARRINGTON
Assistant to the Solicitor
General
JESSICA DUNSAY SILVER
ANGELA M. MILLER
Attorneys

MARCH 2010

1 In a provision not at issue in this case, Congress also invoked its authority under the Commerce Clause, U.S. Const. Art. I, § 8, Cl. 3, in providing that RLUIPA's protections apply to institutionalized persons when "the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States or with Indian tribes." 42 U.S.C. 2000cc-1(b).

2 Petitioner's complaint also included a claim pursuant to 42 U.S.C. 1983 against respondent in her individual capacity for violations of the Eighth Amendment. Pet. App. 2a, 19a-20a.

3 The district court also held that petitioner's claim for equitable relief was rendered moot by his transfer to a facility that provided kosher meals, Pet. App. 25a, and the court of appeals affirmed that holding, id. at 5a-6a.

4 Judge Clay concurred in part and dissented in part, Pet. App. 15a- 18a. He would not have reached the question whether "the doctrine of sovereign immunity bars a plaintiff from recovering monetary damages under" RLUIPA. Id. at 15a-16a.

5 For the reasons stated in the United States' amicus brief filed in Sossamon, supra, the petition for a writ of certiorari in Sossamon should be held pending this Court's disposition of the petition in this case. The instant case is a more appropriate vehicle for resolution of the question whether money damages are available against a State for violations of RLUIPA's protection of inmates' religious exercise. First, the additional question raised in Sossamon (whether RLUIPA creates a damages remedy against state officials in their individual capacities) is not the subject of a circuit split and does not otherwise warrant this Court's review. Second, the plaintiff in Sossamon may not be entitled to anything other than nominal damages in any case because he does not appear to allege a physical injury.

6 It appears that the court of appeals did not consider whether Section 2000d-7 applies to RLUIPA claims. See Pet. App. 5a-12a; see also id. at 16a-17a (noting that petitioner filed his brief pro se and that respondent did not file a brief at all in the court of appeals). This Court would nevertheless be free to consider whether Section 2000d-7's requirement that federal fund recipients waive their Eleventh Amend ment immunity applies to RLUIPA claims under the Court's "tradi tional rule" that "[o]nce a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below." Lebron v. National R.R. Passenger Corp., 513 U.S. 375, 379 (1995) (brackets in original). The argument that a State waives its immunity pursuant to Section 2000d-7 is "not a new claim within the meaning of that rule, but a new argument to support what has been [petitioner's] consistent claim:" that he is entitled to sue respondent in her official capacity for money damages under RLUIPA. Ibid.

7 This Court has similarly interpreted the term "discrimination" broadly in other statutes specifically enumerated in Section 2000d-7. For example, the Court has repeatedly interpreted the general prohibition of sex discrimination in Title IX of the Education Amend ments of 1972 (Title IX), 20 U.S.C. 1681, to include more than a simple ban on traditional disparate treatment. Rather, the Court has interpreted the prohibited "discrimination" to include a school's deliberate indifference to teacher-on-student or student-on-student sexual harassment, see Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 649-651 (1999); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 287-290 (1998); Franklin, 503 U.S. at 74-75, as well as retaliation for complaining about sex discrimination, Jackson, 544 U.S. at 174; accord Gomez-Perez v. Potter, 128 S. Ct. 1931, 1936 (2008); CBOCS W., Inc. v. Humphries, 128 S. Ct. 1951, 1960-1962 (2008).

8 Moreover, RLUIPA includes an explicit prohibition on discrimina tion on the basis of religion by any government entity in the implemen tation of a land use regulation. 42 U.S.C. 2000cc(b). The close proxim ity of this explicit prohibition to the accommodation requirement specified for institutional settings demonstrates that Congress saw the two as of a piece-both meant to cure the inequitable treatment of religious persons by government officials.

9 Congress's intention to provide private claimants with the ability to seek money damages is also apparent from the statute's express limitation on remedies the Attorney General may seek in enforcing RLUIPA. That limitation of remedy to "injunctive or declaratory relief," 42 U.S.C. 2000cc-2(f), would be utterly superfluous if plaintiffs in the private action established by the statute could not receive other remedies.

10 Thus, for example, in Webman v. Federal Bureau of Prisons, 441 F.3d 1022 (2006), the District of Columbia Circuit correctly held that the term "appropriate relief" as used in the Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb et seq.-which applies only to the federal government-is insufficient to waive the federal govern ment's sovereign immunity from suits for monetary damages.

11 In addition, shortly after the Eleventh Circuit's decision in Smith, the Third Circuit held, in an unpublished opinion devoid of analysis on the issue, that the Eleventh Amendment barred a prisoner's RLUIPA claim against a prison warden in his official capacity. Scott v. Beard, 252 Fed. Appx. 491, 492-493 (2007).

12 The courts of appeals that have considered the question in this case since the decisions in Smith and Madison have done little more than adopt Madison's reasoning as their own. Van Wyhe, 581 F.3d at 654; Nelson, 570 F.3d at 884; Sossamon, 560 F.3d at 330-331; Pet. App. 6a- 12a.